from the not-exactly-win-win,-but-close dept

The administration wants Snowden back badly enough that it has let this singular aspect cloud its judgement. Obama recently stated he won't be meeting with Putin, stating Russia's harboring of Snowden as a factor (rather than Russia's multiple issues with human rights). Rather than engage in the debate Obama claimed he "welcomed," the administration is circling the wagons, as evidenced in the petty statement it issued in reference to Rep. Justin Amash's NSA-defunding amendment. Don't govern angry, as they say.

There are plenty of people who believe Snowden is a hero. Many others believe the opposite. The problem is the middle ground is pretty much nonexistent. Allowing Snowden to go free would appease the former, but allow him to continue exposing the NSA's surveillance programs. Locking him up wouldn't do much either, other than allow the government to avenge its embarrassment. It won't stop the leaks, however, at least not if Snowden's "dead man's switch" works as intended. The Guardian is already in possession of thousands of documents. Capturing Snowden will only hasten their release.

The United States should give former NSA contractor Edward Snowden immunity from prosecution in exchange for congressional testimony.

It's an interesting angle. Although Zubrin declares that Snowden "certainly violated the law and may have committed treason," there's something to his suggestion. It's certainly preferable to what the US is currently offering Snowden: indefinite detention preceding a trial, which will then most likely be followed by even more detention.

It may not completely satisfy those who wish to see him punished, but it has to be a better scenario than letting him reside in Russia indefinitely, a country whose motives are rarely pure. On top of that, the US can't be holding out much hope the Russians will just decide to turn him over, and the administration simply doesn't have anything to use as leverage.

Pleading, whining, screaming, or demanding that Russia extradite him is simply absurd. Russia never has extradited any defector, and never will, because if it ever did, that would be the last defector it would ever get.

So, as Zubrin points out, exchanging immunity for thorough questioning seems like the best scenario for the US. If nothing else, it will serve to cut through the defensive rhetoric the NSA has deployed and, if Snowden's portrayal of what's happening isn't entirely accurate, that will be exposed as well.

Snowden and NSA leaders should be brought together face-to-face for questioning in public by a congressional investigatory committee, with both parties allowed to make their points and to counter the assertions of the other. If Snowden is lying, it will come out. If the NSA is lying, it will come out. If either refuses to appear, that party will be discredited.

Now, while the idea has its merits and would allow Snowden to return to America without facing a lengthy prison sentence, it's not without its potential drawbacks. (And this is assuming the administration would ever agree to this compromise, which is highly doubtful.)

First off, if the administration would offer this compromise, there is no question that it would demand an immediate halt to the leaks. This works in the government's favor, by both preventing any further exposure of the NSA's programs, as well as limiting discussion to what's been leaked previously -- much of which has already been discussed somewhat openly (if rather opaquely and "least untruthfully"). Using this as the baseline, the government could easily steer the discussion to well-traveled areas, allowing it to keep other malfeasance under wraps.

Second, this discussion will be going on behind closed doors. Access to the Manning trial was strictly controlled. It took a huge amount of effort just to get a transcriptionist into the press gallery. The access here would be even more limited thanks to the subject matter, which will be designated as "classified," even if the subject matter is all over the internet. So, the chances of the public receiving any benefit or new knowledge is rather low.

Finally, this scenario, despite being more balanced than the government's current offering, still favors those who wish to see Snowden prevented from leaking any more documents (or at least, giving the go-ahead from Russia -- the documents are already "leaked"). This would halt any further "damage" and put Snowden in a "his word against theirs" situation that can easily be spun by representatives of the intelligence community.

The government has the luxury, thanks to the programs being classified, of not having to prove any of Snowden's testimony conclusively false. All it has to do is magnify every misstep by Snowden and make loud noises about "exceptionally grave damage to national security" when it's the NSA's turn to answer his allegations.

Ultimately though, all of this discussion ignores the fact that there's a human being in the center of all of this, one that may be willing to make concessions in order to return to his homeland, or go the other way and refuse similar deals on principle. Whatever is most advantageous for both sides of the debate will likely rarely align with what Snowden feels is best for him. Still, the possibility of taking on his former employer and STILL being able to walk free might be very tempting.

from the lame dept

Astroturfing -- the process of a faux "grassroots" effort, often set up by cynical and soulless DC lobbyists pretending to create a "grassroots" campaign around some subject -- is certainly nothing new. It's been around for quite some time, and it's rarely successful. Most people can sniff out an astroturfing campaign a mile away because it lacks all the hallmarks of authenticity. A separate nefarious practice is fake Amazon reviews -- which have also been around for ages -- amusingly revealed when Amazon once accidentally reassociated real names with reviewers' names to show authors giving themselves great reviews. Over time, Amazon has tried to crack down on the practice, but it's not easy.

So what happens when you combine incompetent astroturfing and fake Amazon reviews? Check out the reviews on Susan Crawford's book, Captive Audience: The Telecom Industry and Monopoly Power in the New Gilded Age. Now, I should be clear: while I respect Crawford quite a bit, and often find her arguments compelling and interesting, I found Captive Audience to go a bit too far at points, and felt that the book lost a lot of its persuasive power in really overstating the case. We agree that the broadband market is not even remotely competitive, but we disagree on the solution to that. Still, I think the book is very much worth reading, and an important contribution to the discussion on broadband/telco policy.

But, boy, the telco lobbyists and shills really have been going overboard trying to smear the book every which way. Front groups set up by the big broadband players going by names like NetCompetition, Broadband For America, and Media Freedom have wasted little time attacking the book as if it has no redeeming merits at all.

But, at least people can look at who's behind those various organizations, or where their "founders" last plied their trade. When it comes to Amazon reviews, it's a somewhat different story. Karl Bode recently noted the large number of one star reviews on Crawford's book that exhibit a pretty clear pattern: a "folksy" tone from someone in an "ordinary" job, living in a "rural" location (they all mention a rural location) absolutely trashing Crawford's book, all using talking points that the big telco lobbyists have been handing out. Here are a few examples.

This is wrong

By lavell martin (hazelwood, mo United States)

Des Moines, Iowa
I am professional truck driver who uses the Internet in job training.I have just read the book "Captive Audience" by Susan Crawford. I am very disappointed in her negative attitude toward our national telecommunications system. As a professional truck driver, I have been using technology since the days when CB radio was the next big thing. Then came cell phones that were barely useful for an over-the-road trucker who was almost always "roaming" from his home system.

But times have changed and now every trucker has the ability to communicate, not with a trucker a quarter of a mile ahead or behind, but a quarter (or all the way) around the world. Wireless technology allows us to track where trucks and their cargo are in real time. They allow us to contact our customers to alert them to our arrival time, meaning I can unload as soon as I get to the customer rather than waiting for someone to arrive.

To read Ms. Crawford's book you would be led to believe that the companies who have investested hundreds of billions of dollars in these systems haven't accomplished anything. She is wrong. The "breaker-breaker" days are long gone and it is private industry that has left it far in our rear-view mirrors.

Unimpressed - Facts Don't Add Up

By
nhunter

I do much of my schoolwork online and do not believe that Susan Crawford's points in "Captive Audience" are valid. I am from a rural area, yet my broadband connection is good enough for me to stream online lecture and perform research. Only 3-5% of homes in the US do not have access to wired broadband services, and generally in these cases there are multiple wireless options. I simply do not know anyone who is not able to purchase a wired broadband connection - even in remote areas.

Our system of private investment is sustainable and has provided affordable service to hundreds of millions of people. Looking at the state of broadband in the US I do not see the problems in our system that Ms. Crawford points out. The last thing we need is a complete overhaul that trades our tried and true system for one of uncertainty, reliant on government spending. In order to provide better, cheaper broadband we need to move regulation out of the 1990's and into the 21st century.

Captive Audience lacks in believability

By
MAntkow

I am not sure I agree with the central premise of this book. While Susan Crawford certainly has credibility, given her tenure as President Obama's technology advisor, I am just not buying her take on the supposed monopoly within the telecom industry. If the United States is truly lagging behind other countries in its access to high-speed broadband Internet, how is it our Internet network infrastructure investments have risen by almost 25 percent? Moreover, if access were really a problem in the U.S., I would almost certainly have first hand knowledge of it. I am from a remote part of Kentucky that is as far a cry from big city living as one can get. I have yet to find my access to the Internet lacking.

Terrible BookBy
Lee

I do not live in a metropolitan area, but I have had access to an affordable high-speed connection for over a decade. Ms. Crawford is not telling the whole story. The FCC has reported on multiple occasions that over 99% of the population has access to satellite, wired or wireless broadband connection. Not so long ago there were people who thought laptops would never be an equal to desktops, and tablets could never be a substitute for a laptop. It seems those that doubt technology usually end up wrong, and if there is any industry that will provide world changing innovation over the next few years, my bet is it will be in broadband here in the US.

Because I'm a curious sort, I decided to look a little more deeply at the 31 one-star reviews, and see if I might glean any patterns. I read through them all and noticed some very noticeable patterns. First of all, there are a few named reviewers who are listed as "verified buyers" of the book or are in Amazon's "Real Name" program. Those are people who are clearly legit. Of course, nearly all of those reviewers are rather well-known in technology/telco policy circles, often closely associated with various think tanks known for supporting the position of the telcos: you have Scott Cleland of NetCompetition, Richard Bennett of ITIF, Ryan Young of CEI, Andrew Langer of the Institute for Liberty and Geoffrey A. Manne of the International Center for Law and Economics. I don't have any problems with these reviews. While the view of these individuals are well-known and were probably decided long before they ever came near the book, they put their names on the reviews and many of them are listed as verified purchasers. On the flip side, for the 5-star positive reviews, you have folks like Tim Karr from Free Press, though that's really about it (there is also Dane Jasper, the CEO of awesome local ISP Sonic.net, but he's an actual expert in the field, not just some think tank policy analyst like everyone else).

The problem comes in when you look at everyone else. As mentioned, a very large number of the reviews seemed to follow a similar pattern -- so I figured why not see if we can compare the 1-star reviews to the 5-star reviews in some manner. To keep it fair, I removed the named DC policy folks from the calculations, though even if you add them back in the numbers are pretty striking. First, I looked at what percentage of the reviews included some sort of folksy reference to their job (e.g., "I'm a truck driver and my experience is...", to the fact that they lived somewhere rural or non-metropolitan, or that they were a student). In reading the reviews, these all felt extremely inauthentic, because there's nothing about Crawford's book that should lead someone to discussing any of those things. It's irrelevant -- but if you're a clueless DC astroturfing firm trying to sound like everyday common folk, it might be something you do.

Fifteen of the 1-star reviews make such a mention. That's 58%. Of the 5-star reviews, there was only one single mention of anything having to do with rural settings, and it was someone delving more deeply into the issue of rural broadband, rather than anyone trying to sound folksy. No one mentioned their down home job or that they were a student. So if we include that one pseudo-mention, it's 2.5%. In other words, something is pretty clearly off with those 1-star reviews.

My second check was to look at whether or not the reviews had one of the following three criteria: they were a verified purchaser, they were enrolled in Amazon's "REAL NAME" program, or they had reviewed other products besides just Crawford's book. While this is a rather crude measure, I figured that having any of those things be true at least suggested that there was a real person behind the review. Having none of those three things might still mean they were a real person who legitimately bought the book and was giving a legitimate opinion, but at the very least it couldn't be proven. To give the benefit of the doubt to the Crawford haters, here I added back in the known policy wonks -- who were basically the only 1-star reviewers to qualify as humans under these criteria. Without this, I think only two of the remaining 26 reviewers could meet the criteria. In the end, even with the known DC policy insiders, only 11 out of the 31 reviews, or 35% met the criteria.

Of the 5-star reviews, 80% met the criteria. And, even this is somewhat misleading. Of the reviews that did not meet the criteria of provably human, nearly all of them mention that they're leaving a 5-star review solely to counteract the obvious shill 1-star reviews. I think that's counterproductive in many ways, but it suggests that those reviews weren't directly "shill" reviews, but rather response to astroturf reviews.

As a further check, I compared the average number of other products reviewed by each group -- the 1-star reviewers and the 5-star reviewers. That really wasn't a fair fight. The average number of "other" reviews by those who gave Crawford's book a 1-star review: 1.4. And that's almost entirely due to one person, Richard Bennett, who has 24 other reviews. Of those who gave it a 5-star review, the average is 113.9. Yes. 1.4 vs. 113.9. Okay, the 5-star reviews are also skewed heavily by one reviewer, Loyd E. Eskildson who has over 4,000 reviews. So, to be fairer, I cut out that outlier and the 5-star reviewers still had an average of 13 other reviews (I didn't even bother to take out Bennett's outlier on the 1-star reviews). Using the other (probably better) tool, we could also compare the median other reviews for each group. For the 1-star reviews, it will surprise no one to find out that the median is 0. For the 5-star group, the median is two.

Basically, no matter how you slice it, there's some sort of statistical anomaly going on here that makes it pretty clear that someone was pushing a ton of fake astroturfing reviews on Crawford's book, and didn't even care to take the time to hide it well. As I said, even if you don't fully agree with the book, I'd hope we can all agree that this is a pretty disgusting move by whatever lobbyists/shills/think tanks dreamed up this astroturfing campaign just because they don't like what the book says. Can't fight on the merits, huh?

from the ah,-look-at-that dept

We were happy to see that the WIPO treaty for the visually impaired was finally completed and signed following the negotiations in Marrakech, where the MPAA did everything it could to try to kill or water down the agreement, with the US negotiating delegation acting as the MPAA's happy lap dogs. So, I guess it shouldn't be much of a surprise to see that while 51 countries signed the agreement in Marrakech, the United States was not among them.

Now, you can argue that the US should have time to look over the agreement, or maybe run it through Congress first -- but, of course, when it comes to agreements that simply expand copyright, such as ACTA, the US stepped right up to sign right away, without having any open discussion or asking Congress to approve it. Furthermore, merely signing the document is different from ratifying it, so the US could have signed the document, and decided whether to fully ratify it later if it was really concerned. But, instead, the US simply decided not to sign at all, even as other countries decided to do so.

from the constitutional-analysis dept

Edward Snowden is not a constitutional lawyer. But his
public
statement explaining his decision to blow the whistle on what he and
Congress both know to be only the "tip
of the iceberg" of state snooping secrets expresses a belief in the meaning
of the Constitution: in a democracy, the people – not his defense contractor
employers or the government that hires them - should ultimately determine
whether mass surveillance interfering with everyone's privacy is reasonable.

Some have tried to minimize the import of the snooping
exposed by Snowden on the grounds that the government is just storing the
information it gathers, and has not yet searched it. The Fourth Amendment
of the Constitution prohibits "unreasonable searches and seizures."
Seizure – the taking of private information – is what the government has
now been forced to admit in its decision to prosecute Snowden for telling the
truth about their secret seizures. Whether or not the state ever chooses
to "search" the seized information, the universal, non-consensual seizure
itself of what used to be called "pen register"
data grossly invades individual privacy and vastly empowers government, all in
violation of the Constitution if "unreasonable."

The Supreme Court reads the Fourth Amendment's
"unreasonable" test to mean not "objectively reasonable," United
States v. Leon, 468 U.S. 897, 922 (1984). This would mean
"reasonable" as viewed by ordinary citizens - like Snowden. The Fourth
Amendment is a unique exception to the Constitution's general choice of
representative democracy ("a Republican Form of Government," Art. IV, §4) over
direct democracy. The term "reasonable" appears nowhere in the
Constitution except in the Fourth Amendment, although it is a concept
well-known to law. For example, legal negligence is a breach of what a
jury determines a "reasonable man" would do in the same circumstances. A
similar standard has been imported into Fourth Amendment determinations.
The Supreme Court long ago said that "probable cause for a search exists
when the facts and circumstances within the police officer's knowledge provide
a reasonably trustworthy basis for a man of reasonable caution to believe that
a criminal offense has been committed or is about to take place." Carroll v.
United States, 267 U.S. 132 (1925). So what the public deems
reasonable is what the Constitution means by reasonable. Though public
opinion is always relevant to interpretations of the Constitution, this is the
only context where the Constitution directly assigns to the people the power to
determine what the Constitution means.

By definition, the people cannot deem
to be "reasonable" what they do not know about. Snowden uniquely did
know. So like a digital era Paul Revere he decided to share his knowledge
with his fellow citizens to test his hypothesis that they would not consider
dragnet surveillance of their private electronic communications any more
reasonable than he did, and like him, as citizens, they might choose to act
upon that knowledge.

A strong case can be made that Snowden is right. Hence
there is no need for him, or his supporters,
to concede that he has broken any law. According to the Supreme
Court, "it remains a cardinal principle that searches
conducted outside the judicial process, without prior approval by judge or
magistrate, are per se unreasonable under the Fourth Amendment --
subject only to a few specifically established and well-delineated exceptions."
California v. Acevedo, 500 U.S. 565 (1991) (quoting Katz v. U.S.)

The scope and duration of the seizures revealed by Snowden
make them inherently non-judicial in nature, as discussed below. Any
exception to the Fourth Amendment's "right of the people to be secure in their
persons, houses, papers, and effects" in the absence of showing
individualized probable cause – or even reasonable suspicion – that a crime is
being or will imminently be committed places it well outside the judicial
process. This imposes a heavy burden on the state to prove that its
search was otherwise “reasonable,” and not a breach of the Fourth
Amendment's “bulwark against police practices that prevail in totalitarian
regimes.” (id. Stevens, J. dissenting).

According to the Snowden revelations the Obama
administration has violated this rule. A valid warrant could not have
been issued under this rule when no reasonable person could possibly believe,
no matter how much irrational
fear the state and its
propagandists are able to drum up, that universal crime by the general
public, or by Verizon subscribers in particular, has been committed or is about
to take place.

The state's burden of proving reasonableness is more
difficult to carry in that the Constitution was designed to prohibit in every
conceivable way known to its framers just the kind of authoritarian intrusion
by central government on autonomous self-governing citizens that the Bush and Obama
administrations' power-grabbing, privacy-invading nationwide snooping on
innocent citizens represents. At least three constitutional protections
against tyranny in addition to the Fourth Amendment reasonableness requirement
should also invalidate such encroachments.

In his Federalist #47, James Madison explained the
separation of powers principle: “The accumulation of all powers legislative,
executive and judiciary, in the same hands ... may justly be pronounced the
very definition of tyranny.” The dual sovereignty of the federal system was
intended to further divide those separated powers between what is truly of
national concern and what is of only local concern. "By denying any
one government complete jurisdiction over all the concerns of public life,
federalism protects the liberty of the individual from arbitrary power. "Bond
v. United States,131 S. Ct. 2355, 2365 (2011) (Kennedy, J., for unanimous
Court ).

The question as to separation of powers is: which branch
of the state, if any, can be trusted to accurately discern and express the
judgment of the people as to the Fourth Amendment reasonableness of a permanent
and universal regime of search and seizure of private communications?
Since the subject restrained by the Fourth Amendment is the state acting
in its executive capacity, the contours of the restraint on executive powers cannot
be left to the subjective determination of the executive branch itself.
Allowing the executive branch to decide the reasonableness of its own
actions would defeat the purpose of the Fourth Amendment. Hence the views
of Obama, his prosecutors, military, and spies are all irrelevant to this
determination. They stand accused of violating the rule of reasonableness
which, not them, but the people must decide.

The judicial power under Article III of the Constitution
extends only to the application of law in individual cases. Like stories,
cases have a beginning, a middle and an end. The state does not have the
power to initiate and courts do not have the power to hear a never-ending case
against the whole population of the United States, or even against
the subset of all the customers of Verizon. Only a police state with
its secret tribunals takes such an adversarial posture against its own people.
Where the government diffusely suspects and secretly snoops on the whole
people, in a democracy, it is the government itself that proves itself
illegitimate, unrepresentative, unreasonable, and in violation of its oath to
support the Constitution.

The power to make rules that affect everyone into the
indefinite future is inherently a legislative and not a judicial power.
An unelected “court” that violates the separation of powers by exercising
legislative powers in order to make new rules empowering the executive in
secret collaboration between the two separate branches is the very definition
of tyranny, in Madison's terms. Having a judge authorize an act
does not turn that authorization into a “judicial process” as required by Katz.
No judge or magistrate, let alone one judge of a multi-judge tribunal,
Colleen Kollar-Kotelly acting in secret even from her own
secret FISA court, can exercise Article III judicial authority, let alone
collaborate with Article II executive power, to decree a universal and unending
search or seizure of private communications. Any such unlimited “search
and seizure” of persons who are not even suspects takes place inherently
“outside the judicial process” of cases. As stated in Acevedo and Katz
quoted above, it is therefore presumed “per se unreasonable under the
Fourth Amendment.”

A legislature authentically representative of the people
might determine that such a generalized search is a reasonable and necessary
exception to this per se rule under some “specifically established and
well-delineated” circumstance “that society is prepared to recognize as
'reasonable,'" Katz (Harlan, J, at 361). That has
obviously not been done. Few in Congress were even aware of the scope of
the snooping being conducted by the Obama administration and its strained
interpretations of law. Nor were they aware of the advisory opinions from
a nominal court in fact acting as a secret unelected legislature acting in
secret complicity with the executive branch to circumvent constitutional norms
and usurp its legislative power.

Legislators were in any event proscribed from sharing with
their constituents any knowledge they did acquire. Hence they could not
represent any views of their constituents about the reasonability of secret
spying which their constituents did not even know about.

With respect to federalism, the general police
power to define and enforce criminal law resides with the states, not the
federal government. Most of what the federal government now targets as
part of its domestic “war on terrorism,” which it invokes to justify universal
snooping, in fact constitutes the local common law crimes traditionally
described as “riot” or “mayhem.” The federal government has no
generalized power to enforce state criminal law or make its own. There is
no general power given the federal government in the Constitution to “fight
terror,” which is a tactic. The government therefore has an initial burden to
prove that its invasion of the privacy of every target of its dragnet
surveillance program was “necessary and proper” to enforce some specific
federal power that is enumerated in the Constitution.

This proof has been alleged but, if it exists at all, it
remains hidden under a blanket assertion of state secrecy. What the
people can see before their own eyes is the most expensive security state in
the history of the world incompetent to prevent, except for those attempts
resulting primarily from the state's own entrapments, several atrocious
domestic crimes having varying degrees of international provenance. If
spying actually did prevent other attempted crimes, as alleged, then where are
the attempt indictments and prosecutions to prove it?

Since the “war” against terrorism is not a war in
any traditional meaning of the term, but rather law enforcement by military
means, and the NSA is a military spy agency, the Third Amendment command that,
“No solider shall, in time of peace be quartered in any house” may be dusted
off for application in the information age to this extreme case of state
intrusion into private homes.

This is a time of peace in North America both because
Congress has not declared war in any traditional notion of the term, and
because the framer's original concept of war did not include overseas imperial
adventures. The Third Amendment bespeaks war within the United States.

Electronic communications capacity has become an inherent
feature of any modern dwelling house in the United States. Yet every electronic
communication originated and sent from private homes is being seized by the
military. Such permanent residence by Big Brother military spies within
one's private stream of communications could be seen as an updated form of
unconstitutional “quartering,” the same kind of abuse of power by the
military against citizens that the founders detested and prohibited, except in
time of war

Aside from these constitutional restrictions on Congress
from authorizing a universal spying program, and Congress's actual failure to
assess and represent general public views about the reasonableness of mass
spying, there is another factor that precludes Congress as it functions in the
era of money in politics from representing the objective public view of Fourth
Amendment reasonableness.

What makes a modern Paul Revere like Edward Snowden
necessary is that even Congress itself cannot be trusted to represent the will
of the people, in these corrupt times, on virtually any subject on which money
speaks. Pollsconsistently
show confidence in Congress declining to around 10%, while about 80% of voters consider the government to be illegitimate in terms of the
Declaration, i.e., lacking the “consent of the governed.” Of likely
voters, 69% think Congress will “break the rules” for their financial contributors.
Other polls express the country's universal understanding (95%) that
big money invests in politics for the large financial returns it earns by
controlling government.

Such polls indicate a widespread understanding that Congress
does not represent the people in any real sense. Its members and leadership are
widely perceived as instead beholden to money. No politician wins office
without some compromise of democratic legitimacy by dependence on plutocrats
and special interest money, and certainly not a governing majority and its
leadership without a lot of such money. Thus enactment of a law by
Congress purporting to determine what the people think is reasonable is not
necessarily a valid constitutional law that mirrors objective reasonableness.

Even aside from the lucrative
government surveillance contracts that special interest money secures from
Congress to subsidize “America’s
last growth industry,” the plutocrats who buy enough politicians to dictate
policy feel more secure when the people are stripped of their liberties.
Without civil liberties, the people of the United States cannot sustain a
democracy dependent upon that “consent of the governed” engraved on its
foundation stone when laid in 1776. Without civil liberty, money can
continue to rule by purchasing influence from its elected peddlers. In
this corrupted system what the overwhelming majority of people may consider
reasonable is now irrelevant to members of Congress, whether the subject is
establishing effective weapon background
checks or anything
else opposed by the plutocrat class who pays them. See Martin Gilens, Affluence
& Influence: Economic Inequality and Political Power in America(2012).
Congress can thus not reliably represent the public's view of Fourth
Amendment reasonableness, even if it had tried.

What do the American people consider reasonable concerning
mass surveillance? A
Washington Post poll (question #8) taken after the Boston Marathon bombing
suggests that most Americans with an opinion would worry that government
surveillance in the name of fighting terrorism would be unreasonable (i.e. “go
too far”):

“Which worries you more: that the government (will not go
far enough to investigate terrorism because of concerns about constitutional
rights), or that it (will go too far in compromising constitutional rights in
order to investigate terrorism)?

A Pew poll taken
after the Snowden revelations confirmed that a similar majority finds mass
surveillance unreasonable. They answered “no” by 52-45% to the
straightforward question: “Should the gov't be able
to monitor everyone's email to prevent possible terrorism?” On the question
of whether Snowden's NSA leak “serves the public interest” a majority
with an opinion thinks it did, by 49-44%. If they “knew government had
collected their data,” 63% said they “would feel their personal privacy was
violated.” Of those respondents who agree with the Tea Party, 65%
“Disapprove Gov't collection of telephone and
internet data as part of anti-terrorism efforts.”

A TIME
poll has 54% thinking Snowden did a “good thing,” in response to a
neutrally phrased question:
“Do you feel that the person who leaked the information about this secret
program did a good thing in informing the American public or a bad thing?

A Washington
Post/ABC Poll asked: “The NSA surveillance program was classified as
secret, and was made public by a former government contractor named Edward
Snowden. Do you support or oppose Snowden being charged with a crime for
disclosing the NSA surveillance program?”

A majority having an opinion opposed prosecution 48-43%,
with independents opposing even more. An overwhelming majority of 65%
supported “having the U.S. Congress hold public hearings on the NSA
surveillance program,” suggesting the public dismisses the claimed need for
secrecy as being more important than their own privacy interests.

When such a majority, or even a substantial minority,
opposes government snooping in everyone's electronic communications, that
should be a conclusive indication as to whether such a search and seizure is
generally viewed as unreasonable. If reasonable people can differ
on the question, then such a search and seizure cannot be held to be
reasonable. “Reasonable” is what any reasonable person would accept.
As one scholar recently observed,
“the actual course that Internet surveillance law will take remains extremely
difficult to predict.” That is because such a public consensus of
reasonableness has not been reliably and formally determined and expressed.
It is important for the public to step in now to resolve this uncertainty
by formulating and expressing informed views on reasonableness of dragnet
surveillance. The “judicial” appraisal of reasonableness that has taken
place outside of public view is only a single data-point for the public to consider
in reaching its own independent assessment of reasonableness.

Those
who would rely upon Smith v. Maryland (1979) for a rule that pen
registers are inherently exempt from the Fourth Amendment, due to the
court-determined lack of public “expectation” of privacy with regard to dialed
telephone numbers, ignore the Court's important proviso in that case that
swallows any such firm rule based primarily on word-play. The five-judge
majority held that such attributed “expectations” would not govern, and “a
normative inquiry would be proper … [f]or example, if the Government were
suddenly to announce on nationwide television that all homes henceforth would
be subject to warrantless entry,” 442 U.S. 740-741, n. 5, which has
essentially just happened, for all private digital communications purposes. &nbsp

In other words, it is not what the public cynically
“expects” from a tyrannical and intrusive government that secretly evades its
constitutional obligations, but what the public “normatively” considers
reasonable which must govern application of the Fourth Amendment. The people
are thus entitled to “expect” what they think is reasonable conduct from their
government even if such conduct is not in fact forthcoming from a government
demonstrably not dependent upon their opinion, and the public knows it.
Otherwise, as Justice Marshall wrote, reliance on public “expectations”
in the sense of factual predictions of government behavior, “would allow the
government to define the scope of Fourth Amendment protections.”

Three Smith dissenters, Marshall and Brennan,
expressly, and Stewart, implicitly, thought the “normative” exception should
have governed the Smith case itself. Smith was a case where
the pen register targeted the phone of a specific suspect of a specific crime
against a known victim involving use of the telephone, the evidence of which
crime was strong enough that the suspect was ultimately convicted. The
Court's rationale was that Smith reasonably expected the telephone company to
know the number he called, which knowledge – once shared with the police -
provided evidence of his guilt.

Smith provides no support for the idea that the
public would either expect or consider “normatively” reasonable the
indiscriminate maintenance of pen registers for all the electronic
communications of persons, the overwhelming portion of whom were not remotely
suspected, let alone probably guilty, of any specific crime either involving or
not involving such communications.

Justice Marshall also cogently attacked the word-play
foundations of Smith by pointing out that because persons may release
private information to a third party for one purpose “it does not follow that
they expect this information to be made available to the public in general or
the government in particular. Privacy is not a discrete commodity, possessed
absolutely or not at all.“ Since the false dichotomy of expectations used
by the majority is a logical fallacy and propaganda technique, the public would
likely find far more reasonable the relativist view of privacy expressed by
Justice Marshall that “[t]hose who disclose certain facts to a bank or phone
company for a limited business purpose need not assume that this information
will be released to other persons for other purposes” without a warrant.

Whether the contrary holding by the Smith majority
was unreasonable is a question for the public to decide, and courts to merely
discern, not dictate. For a Fourth Amendment determination of what is
“unreasonable” the Supreme Court does not have the power to decree, but only
mirror and reflect, the public's objective sense of reasonableness of
government intrusions on their individual privacy.

The standard remedy against the state for making an
unreasonable search or seizure is a damages claim against the officials
involved where a jury would determine reasonableness. At the time of the
Constitution this was the practice for protection of citizens from state
intrusion. “An officer who searched or seized without a warrant did so at
his own risk; he would be liable for trespass, including exemplary [i.e.,
punitive] damages, unless the jury found that his action was "reasonable.”
… [T]he Framers [of the Fourth Amendment] endeavored to preserve the jury's
role in regulating searches and seizures.” 500 U.S. 581-2 (Scalia. J.,
concurring).

A jury, properly selected and informed, can be fairly
representative of, and a legitimate disinterested proxy for, informed public
opinion. A civil jury is thereby institutionally capable of reflecting
what society at large considers reasonable. The Federal Rules of Civil
Procedure, Rule 48, requires a unanimous verdict of at least six jurors.
Thus a fairly small minority of jurors representing a similar minority of
the public can force either a compromise verdict by which alleged snooping is
found unreasonable, or at least a mistrial if other jurors refuse to negotiate.

The problem with the civil justice solution contemplated by
the Constitution's Seventh Amendment however is that courts have invented
official immunities to protect government officials from juries. E.g.
Safford Unified Sch. Dist. No. 1 v. Redding, 557 U.S. 364 (2009).
This tends to remove the question of Fourth Amendment reasonableness from
the jury where the Constitution originally placed it, and delegate that
decision right back to those very officials who cannot be trusted to guard the
chicken-coop, and to the judges who invent defenses subversive of the
Constitution in order to exempt those officials from their constitutional
responsibility. Even aside from judge-made official immunities, new
judge-made “standing to sue” rules prevent victims of unconstitutional secret
surveillance from seeking any remedy in court without prior individualized
evidence. E.g. ACLU v. NSA.
Judge-made state-secret and sovereign immunity doctrines, in catch-22 fashion, block
plaintiffs from getting that evidence.

The Justices on the Supreme Court appointed through an
increasingly corrupt and unrepresentative political process (three justices of
the Smith majority were Nixon appointees) cannot be trusted to reflect
the public's objective view of what may be a reasonable sacrifice of privacy in
exchange for achieving some proportionate benefit toward achieving legitimate
law enforcement goals. As observed by one of the last great Supreme Court
Justices, appointed just prior to the institutionalization
of Nixonian corruption, in Fourth Amendment cases
the “Court has become a loyal foot soldier in the Executive's fight against
crime.” (Stevens, J.). The government's proportionality analysis
between loss of liberty and security is difficult to take seriously when, as
one comedian observes,
falling furniture accidents cause more harm than the terrorism offered to justify its new erosion of liberties.

If any branch of the state were conceded the formal power to
decide Fourth Amendment reasonableness in the current environment of the
independence from the will of the people by all three separate branches of the
state, and their corrupt dependence on the will of
money, it would inevitably use that power to cancel the people's civil
liberties, as it has already done in secret. The remaining public forum
where the public may yet formulate and express its
judgment about the reasonableness of mass surveillance purporting to target
terror is a criminal jury trial.

Bradley Manning was denied his constitutional right to such
a trial because of the paradoxical notion that the US Military, which is
uniformly sworn “to support this Constitution” as required by Article VI (cl.
3) thereof, can operate as a Constitution-free zone in its treatment of
soldiers like Manning under the false pretense that their actual sworn duty is
to do anything the military determines necessary or proper for promoting
“security” against shadowy “enemies.”

The Supreme Court has held that “the constitutional grant of
power to Congress to regulate the armed forces … itself does not empower
Congress to deprive people of trials under Bill of Rights safeguards, and we
are not willing to hold that power to circumvent those safeguards should be
inferred through the Necessary and Proper Clause.” So far this broad
principle has been applied only to honorably discharged soldiers, Toth v Quarles, 350 U.S. 11, 21-22 (1955), as well as, fortunately for Snowden, any civilian, even if tried abroad, Kinsella v. U.S. ex rel. Singleton, 361 U.S.
234 (1960), including the military's own civilian employees, like Snowden.
Grisham v. Hagan, 361 U.S. 278 (1960); McElroy v. Guagliardo, 361 U.S. 281 (1960).

It remains for a soldier like Manning to expose the
military's betrayal of its universal oath to support the Constitution by
winning application of the Bill of Rights to at least those cases, like his,
involving other than uniquely military crimes like desertion, see Dynes
v. Hoover, 61 U.S. 20 How. 65 (1857), or cases not driven by the exigencies
of the actual battlefield. The battlefield exception supposedly justifies
the betrayal, but in fact excuses only skipping the Fifth Amendment indictment
of a soldier who is “in actual service in time of War or public danger”
not a Sixth Amendment trial.

Snowden, if he chooses to return to the United States to
face trial or is forced to do so – notwithstanding that he has a
compelling claim to political refugee status– will present a difficult
target for the money-stream media to demonize, although they
are trying. Unlike the case of Manning, the government must provide
Snowden a public trial fully compliant with the Bill of Rights. On the
evidence of his well-articulated public statements, Snowden would seem to have
the makings of a good witness and, on a level playing field, a capable match
for tyrants, both in and outside the courtroom.

In any Sixth Amendment criminal trial of Snowden, a
profoundly important – even defining - issue will be weighed in the balance.
If Snowden did catch the state massively violating its Fourth Amendment
obligations in the view of even a significant minority of the public, then the
interests in maintaining the secrecy of those police-state surveillance methods
cannot constitutionally receive any legal support whatsoever from a justice
system operating under the Constitution.

A number even smaller than the majority
that polls show generally favor Snowden would be sufficient to predictably
prevent a representative jury of 12 peers from unanimously finding the state's
search to be reasonable. F.R.Crim.P., R. 23,
31(d).

Obama's
aspiring police-state's whole project of classifying its violations of the
Constitution should then fall. Keeping his violations of the Constitution
secret might be constitutionally “necessary” to carry out Obama's goals, but it
is not “proper” if the surveillance state goals themselves are unreasonable.
If the underlying snooping is unreasonable, the secrecy of the snooping,
and the effort to punish one blowing the whistle on this secret
unconstitutional project would all be a profoundly illegal abuse of power.

Snowden has a different argument that his revelation to
countries who are not enemies of the United States about US hacking is also not
punishable. State-sponsored hacking is increasingly seen as an act of
aggression inconsistent with international law, a principle accepted by the
U.S. which has also made domestic hacking a serious crime. The same rule
that the state cannot enforce any law solely to keep secret and abet its own
illegal conduct would apply to these revelations as well. The state must
obey the law, not operate like organized crime enforcers eliminating witnesses
to their crimes.

A criminal jury's independence in handling this question of
reasonableness in Snowden's case would seem definitive of whether the US is a
police state or still possesses sufficient civil liberties to peacefully
reclaim its democracy. Surely every citizen who has information about a
crime is obliged to provide that information in accordance with legal processes
that comply with the Constitution. But neither pervasive government
secrecy nor enduring mass surveillance is consistent with the democracy
established by the U.S. Constitution. In any Snowden trial the
preservation of the original constitutional protection against creation of a
police state will require that a fairly impaneled and informed jury decide this
question of reasonableness without interference from the state apparatus of
secret courts and secret laws that belie any notion of due process.

Since the US justice system cannot be trusted, as a matter of course, to provide constitutional due process, Snowden would need to negotiate the
rules of the game before consenting to face a U.S. trial. He has some strong
cards to play in such negotiations, if he can stay alive. If he plays those
cards 1) to draw a judge not blackmailed by or otherwise secretly dependent
upon the national security state, 2) to get a fair jury impaneled, and then 3)
to fairly place before that jury the question whether the government's snooping
was unreasonable, he need not remain a fugitive from US injustice.

Such a trial would constitute a fair test, and a useful one,
of whether Snowden was guilty of anything other than defending the Constitution
in the noble spirit of '76, whether Obama and his military is guilty of
impeachable wholesale
violation of the Constitution, and whether the US has retained sufficient
liberty that it can still be counted among the world's democracies, a status
that Europe is beginning to doubt. Although if ignorant politicians and
propagandists in and outside of government continue to charge Snowden with
espionage, under the
bizarre notion that his revelations to the US public of its government's secret violations of the Constitution
amounts to intentional “adhering to [the US's] Enemies, giving them Aid and
Comfort,” he may eventually not be able to obtain a fair trial in the US at
all, due to jury panel bias.

Given the highly politicized US judiciary, Snowden is wisely
playing for time and a stronger hand by first seeking justice in a political
asylum process or extradition
hearing, whether it would have taken place in Hong Kong or now
elsewhere. Hong Kong was a good initial choice. British standards
of justice there have not been entirely eradicated under its current Chinese
rulers and, unlike the US, the Chinese government had no apparent axe of its own
to grind in the Snowden affair.

By international standards, the US and its judiciary rank
below Hong Kong on a 2012-13
rule of law index. While American propagandists routinely imply that
the US system is a paragon against which all others must be measured, in fact,
objectively, Hong Kong
ranks #8 and #9 respectively on absence of corruption and quality of its
criminal justice system, well ahead of the US's #18 and #26
rankings. The World
Economic Forum – which certainly suffers no anti-US or general
anti-plutocrat biases -- ranks Hong Kong #12 in its 2012-13 index on judicial
independence. That is substantially higher than the appallingly low US
ranking of #38 on the same index, which is proportionately not that far ahead
of China's #66 ranking. If due process was his priority, Snowden was clearly no
fool in choosing sanctuary in Hong Kong, though he is aware
of the coercive and corrupting power that the US can and does bring to bear on
virtually any country. Though China is better situated than most to
resist such pressure, it appears that even China preferred not to pay the cost.
Or perhaps his security could not guaranteed as effectively in Hong Kong
as in Moscow, for the time being.

The paradox to be resolved is that the US justice system
cannot be trusted to rein in a secrecy-obsessed and vengeful government exposed
in illegal conduct as necessary to permit a fair trial to go forward under
constitutional protections; but at the same time a legal process is the only
means to resolve the question about the constitutionality of the government's
conduct and Snowden's innocence.

As Snowden forum-shops and otherwise jousts with the US
government within an international legal context, he might consider making an
offer to voluntarily participate in his trial, prior to any extradition, from
outside the country by telecommunication with the courtroom. Such
practices for taking evidence are allowed by law and are not uncommon. Rule
43 of The Federal Rules of Civil Procedure provides: “For good cause in
compelling circumstances and with appropriate safeguards, the court may permit
testimony in open court by contemporaneous transmission from a different
location.” Cf. F.R.Crim.P 26. Snowden's
legitimate fear of returning to the US would seem good cause and his now widely
followed case a compelling circumstance to use electronic means for cutting
through the dilemma and allowing legal proceedings in his case to move toward
some conclusion without Snowden having to trust a defective U.S. justice
process to preserve his rights.

Such a digital age trial would no doubt attract a large
audience, serving the ultimate purpose of educating, along with the jury, the
American people – and even the world – about one of the most fundamental
democratic rights.

Such an offer by Snowden could only strengthen the hand of
any country who takes what his experience in China has apparently shown to be
the costly act of resisting an extradition request by the U.S. The asylum
country could insist that before it will entertain any extradition request, the
U.S, must obtain a conviction of Snowden through such a fair “in absentia”
proceeding following constitutional procedures as might be agreed by Snowden –
rather than make a mere allegation that can as easily be characterized as
political repression. Until then an asylum country would be justified in
claiming that what Snowden did was no crime as indicated by the supportive
polls indicating that it is the U.S, government, not Snowden, who has acted
unreasonably and therefore illegally.

Any trial of Edward Snowden will determine how much of the
1791 Constitution remains in force in one of the great civil liberties contests
in American history. The jury – and the American people – would then
choose between Obama's Constitution, which insulates the state – and those who
buy influence peddled by its politicians – from the consent of the governed by
manipulating reality, or Snowden's Constitution which empowers an informed
people to protect themselves against tyrannical state intrusions upon their
liberty by “uncovering”
reality. If Snowden is who
he appears to be, his trial could be comparable to the celebrated John Peter
Zenger Trial in colonial times. Though, as then, the judiciary
presides over what amounts to a taxed-without-representation colony of an
illegitimate ruling class which it serves, a fairly selected and instructed
jury, supported by the people, watched by the world, could nonetheless – by
standing in solidarity against that class – win a resounding victory for
liberty.

Bolivia reacted with fury after a plane carrying the country's president home from Russia was diverted to Vienna amid suspicions that it was carrying the surveillance whistleblower, Edward Snowden.

France and Portugal were accused of withdrawing permission for the plane, carrying the president, Evo Morales, from energy talks in Moscow, to pass through their airspace.

Both Bolivia and Austria deny that Snowden is on board, but no one has been allowed to check. Since being forced to land in Vienna, Morales has now been given permission by France and Portugal to overfly their territory, but not by Spain, which had also refused. The simultaneous revocation of permission to pass over these countries looks rather suspicious. The Bolivian defense minister, Ruben Saavedra, who was on the flight, has no doubts about who is behind it:

"This is a hostile act by the United States State Department which has used various European governments."

The Bolivian Vice-President said they had been "kidnapped by imperialism" in Europe.
That framing has now been taken up by other South American governments, who have expressed their outrage at the insult to Bolivia and hence their region. As The Guardian reports in an update on the Bolivian story:

Argentinian president Cristina Kirchner has tweeted that she has been advised that Peruvian president Ollanta Humala will call a meeting of the Union of South American Nations [UNASUR] to discuss ongoing events.

Rafael Correa, the president of Ecuador, has also railed against what he called an "affront to our America," and called on his fellow South American presidents to "take action".

Posting on Twitter, Correa wrote: "Decisive hours for UNASUR! Either we graduated from the colonies, or we claim our independence, sovereignty and dignity. We are all Bolivia!"

There is clearly a lot of political grandstanding and opportunism here. But there seems no doubt that this latest development will sour relationships between the US and South American nations, at least for a while. Spain and Portugal also come out of this badly, and are likely to lose influence among their former South American colonies. This latest incident shows once again the impact of Snowden's actions, which continue to cause major ripples throughout the entire diplomatic world.

from the NSA's-to-do-list:-'impress-Stasi'...-check! dept

While Germany's security agencies seem to be impressed with the size of our surveillance coverage, the German people are understandably a bit more perturbed. The divided Germany of the not-too-distant past saw many people on the eastern side of the Wall spend a great deal of time being surveilled by their countrymen, and recent developments echo that past all too well.

“You know, for us, this would have been a dream come true,” he said, recalling the days when he was a lieutenant colonel in the defunct communist country’s secret police, the Stasi.

As was pointed out late last year, the US government has more data on the average American citizen than the East German Stasi, a division created solely to surveil German citizens. This was noted before the recent leaks, meaning what's been gathered by the NSA, FBI, etc. is exponentially greater than previously estimated.

The Stasi's surveillance was much more targeted than our current efforts, though this was mainly due to technical limitations, rather than out of any concern for German citizens.

In those days, his department was limited to tapping 40 phones at a time, he recalled. Decide to spy on a new victim and an old one had to be dropped, because of a lack of equipment. He finds breathtaking the idea that the U.S. government receives daily reports on the cellphone usage of millions of Americans and can monitor the Internet traffic of millions more.

“So much information, on so many people,” he said.

Today, there are no such limitations. Everything can be gathered, stored and sorted through at these agencies' convenience. How much has been collected still remains a mystery. FOIA requests sent to the NSA attempting to discover what's included have been denied, with the agency predictably stating that confirming, denying or releasing any information would do "exceedingly grave damage to national security."

Former East Germans, however, have been granted access to their personal Stasi files. Reinhard Weisshuhn, a political activist and foreign policy advisor, obtained his recently. Over 15 years, the Stasi put together 9,000 pages on his activities. Stefan Wolfe, who curates the East German Museum, also had a look at his file and found it to be mostly comprised of routine, everyday life.

“When the wall fell, I wanted to see what the Stasi had on me, on the world I knew,” he said. “A large part of what I found was nothing more than office gossip, the sort of thing people used to say around the water cooler about affairs and gripes, the sort of things that people today put in emails or texts to each other.

The author of this McClatchy piece refers to the Stasi's obsessive detailing of day-to-day activities as the "banality of evil." When an agency makes an effort to track everything about someone, actions or words that normally mean nothing are attributed significance by those performing the surveillance. "It has to mean something, otherwise we wouldn't be tracking it." But grabbing everything means ending up with a whole lot of nothing, as Wolfe points out.

“The lesson,” he added, “is that when a wide net is cast, almost all of what is caught is worthless. This was the case with the Stasi. This will certainly be the case with the NSA.”

Even the former Stasi agent, despite his begrudging admiration, finds the US surveillance efforts troubling.

Schmidt, 73, who headed one of the more infamous departments in the infamous Stasi, called himself appalled. The dark side to gathering such a broad, seemingly untargeted, amount of information is obvious, he said.

“It is the height of naivete to think that once collected this information won’t be used,” he said. “This is the nature of secret government organizations. The only way to protect the people’s privacy is not to allow the government to collect their information in the first place.”

You can't justify harvesting this much data if you're not going to use it. And if you can't find anything worth using it for, you'll connect the all-important "dots" until it resembles something... anything. Anything that departs even minimally from the norm becomes suspicious. Using encryption? Probably a threat. Parking too far away from a hotel? Potential terrorist. Find the local water a little tough to drink? Let's get that file started. Unwittingly engage an undercover FBI agent in conversation? Chances are you'll soon be converted into a terrorist.

The US, after years of acting as the world's policeman, has finally revealed itself to instead be the unmarked van that's constantly parked just down the world's street. (And the unexplained "clicking noise" on every US citizens' phone call...) It has the sympathy of several of the world's governments, many of which are directly benefitting from the US's surveillance infrastructure or hoping to construct one of their own. But the citizens of the world are more wary, especially those that who've already been subjected to intrusive, non-stop surveillance by their own governments.

Justice minister Ivo Opstelten on Tuesday refused to comment on claims the Dutch security service AIVD works together with the US secret services in collecting information from email and social media traffic.

…

Dutch security service AIVD has also received information on email and social media traffic via US spy system PRISM, the Telegraaf reports on Tuesday.

Some pretty dramatic claims are being made:

If the AIVD lists an American address as suspicious, it is supplied all the information within five minutes, a source told the paper. The source worked for the department which monitored potential Dutch Muslim extremists, the paper said.

Dutch companies also cooperated with the US authorities' request for information, the source said, claiming that 'there are agents ready to deal with requests for information inside companies and institutions.'

'There are a couple of those secret programmes like Prism active in the Netherlands,' the source is quoted as saying.

There are a few points to note here. First, this is a report about a story in the Dutch newspaper Telegraaf, which draws on unnamed sources. So the chain of information is quite long, and it's likely that details have been lost or mischaracterized along the way. It's also worth noting that PRISM is not the only system mentioned here for gleaning information about people. That's probably muddying the waters yet more, as sources reveal tantalizing information about other spying initiatives that then get subsumed under the general heading of PRISM, simply because it's in the headlines at the moment.

That's not to minimize the shocking nature of these revelations -- the idea that spies around the world may be accessing within minutes any private information they want, is troubling -- merely to note that the picture we have of what is going on remains frustratingly vague. And that, of course, is an argument for more transparency from the authorities, both in the US and elsewhere, about what is really happening to our personal information when we go online, and who has access to it.

from the that's-not-a-comparison-we-want dept

Ai WeiWei knows a thing or two about how oppressive the Chinese government can be, so when he speaks up about the US government and says that they're now acting like China with regards to the NSA surveillance system, people should sit up and pay attention.

I lived in the United States for 12 years. This abuse of state power goes totally against my understanding of what it means to be a civilised society, and it will be shocking for me if American citizens allow this to continue. The US has a great tradition of individualism and privacy and has long been a centre for free thinking and creativity as a result.

In our experience in China, basically there is no privacy at all – that is why China is far behind the world in important respects: even though it has become so rich, it trails behind in terms of passion, imagination and creativity.

He points out how when the government is spying on everyone all the time -- even if they believe it's for the best of reasons -- the impact on society is extremely detrimental.

When human beings are scared and feel everything is exposed to the government, we will censor ourselves from free thinking. That's dangerous for human development.

In the Soviet Union before, in China today, and even in the US, officials always think what they do is necessary, and firmly believe they do what is best for the state and the people. But the lesson that people should learn from history is the need to limit state power.

If a government is elected by the people, and is genuinely working for the people, they should not give in to these temptations.

from the statistics-currently-enjoying-a-deep-tissue-massage dept

We live in a nation of wondrous technological advancement, where our average broadband speed and super low prices are the envy of the world, And if Google shows up to throw fiber around, the local citizenry simply shrugs its shoulders in indifference. Life is good... especially if you're paid to believe it is.

"For some, the discussion about the broadband Internet seems to begin and end on the issue of "gigabit" access. To be sure, a one-gig connection has value, especially for those who have invested in "inside" networks and equipment to handle that 1-gigabit firehose of data.

The issue with such speed is really more about demand than supply. Our business customers can already order 10-gig connections. Most websites can't deliver content as fast as current networks move, and most U.S. homes have routers that can't support the speed already available to the home. As consumer demand grows for faster speeds, a competitive marketplace of wired and wireless broadband providers will be ready to serve it."

Consumers are demanding faster speeds, though. This is why services like Google Fiberare objects of lust and desire interest them. Sure, many broadband companies offer higher speed connections, but at very prohibitive prices. When someone like Google comes along and offers a gigabit connection for $30/month, it's delivering what consumers actually want: higher speeds and lower prices. To date, broadband providers are only willing to give consumers either/or -- never both. (Additionally, service providers like Comcast frequently throw data caps into the mix, which nullifies the positive aspects of a speed boost. Cohen's piece never mentions data caps or their effect on consumer behavior -- both in terms of limiting consumption and increasing costs.)

Cohen claims that 82% of Americans have access to wired high-speed Internet access of speeds exceeding 100 Mbps. But these services, provided in 85% of the country by only the local cable incumbent (the large cable companies never enter each others’ territories, and Verizon FiOS is available to just 15% of the country) are extraordinarily expensive: Comcast charges $114.95 per month for 105 Mbps download services. In Seoul, you can get symmetrical 100 Mbps (equal upload and download) access for $30/month, and there are three or four competitive choices.

So, it's not really a question of need. Most consumers won't fully utilize a gigabit connection. But, they will have faster service at a lower price, and that's what really matters. What Google's entrance into the market does is add some real competition, rather than the cooperation and collusion that has masqueraded for years as "competition."

By focusing on whether you need 1 Gbps, companies like Time Warner Cable and Comcast hope to steer the conversation away from how a lack of competition allows them to offer slow speeds and ever-higher prices (or the fact they're being outclassed in their own industry by a search engine)...

If the United States leads in anything in the broadband sector -- it's the use of denial and distortion by those with a vested interest in protecting the status quo. If you can convince people that everything is fine, nobody tries to fix things and your profit margins as a predatory, lumbering duopoly benefiting from regulatory capture remain high. You can legitimately argue that things are improving in many regions -- but to insist the United States is the global broadband leader is an obnoxious level of hubris, even for Comcast.

Cohen's article paints a broadband picture so rosy one almost expects a "sponsored content" banner to be flying above it. He even takes a moment towards the end to bash the broadband industry's (many) critics.

Today there is a cottage industry of critics who always want to tell us that our broadband Internet is not fast enough or satisfactory for one reason or another. The reality is that the United States is leading the way in speed, reach, and access - and doing so in a vast, rural nation that poses logistical connectivity challenges unlike any other country.

As Bode pointed out, a strain of hubris runs through Cohen's piece, but here it comes to a head. Comcast itself has MANY critics but Cohen acts as though the negative attention is undeserved. This "cottage industry" exists in part to battle the kind of misinformation Cohen and his cohorts portray as "facts." His attempt to belittle broadband critics as some sort of self-interested fringe "industry" is where his hubris comes to a head. It's obviously more than that if Cohen feels the need to tout his industry's "stellar" service via a major newspaper.

from the well,-look-at-that dept

For the last few months, Techdirt has been following the surprisingly rapid embrace on both sides of the Atlantic of the proposed transatlantic free trade agreement, known variously as TAFTA or TTIP. Coming out of nowhere, the agreement is being talked about as if its success and benefits are more or less guaranteed.

But this huge project is being driven as much by politics as by economics: both the US and EU see it as a way of re-asserting their influence against the background of a constantly more powerful and assertive China. And that makes progress highly vulnerable to local political shifts, as a bombshell comment from the US side, reported in the Guardian, makes clear:

The Obama administration has warned British officials that if the UK leaves Europe it will exclude itself from a US-EU trade and investment partnership potentially worth hundreds of billions of pounds a year, and that it was very unlikely that Washington would make a separate deal with Britain.

That refers to UK Prime Minister David Cameron's growing problems with the UK Independence Party (UKIP), which wants the UK out of the European Union. The sudden rise of the nationalist and traditionalist UKIP, which recently has won seats in local government and is riding high in the opinion polls, has forced Cameron to agree to hold a referendum on whether the UK should leave the European Union in order to blunt UKIP's appeal to right-wing voters, and to quell a growing rebellion in the ranks of his own Conservative party.

That vote will take place sometime before 2017, which means it may not happen for a few years. But the new uncertainty, coupled with a prospect of the EU being weakened by the UK leaving -- and the US losing its main ally there -- was apparently enough for the Obama team to issue the veiled threat quoted above: that if the UK does leave, it won't be part of TAFTA, nor of any separate trade deal.

Some believe that the ramifications of UKIP's success in forcing Cameron to hold a referendum might be even more significant than simply putting pressure on Cameron to make the case to stay in the EU. For example, Gary Hufbauer, a former US Treasury official, is quoted in the same Guardian article as saying:

the administration's hopes to complete a far-reaching partnership in Obama's term may be over-optimistic and would be torpedoed altogether by a British exit from the EU.

"If the UK separates from the EU, I think will go a long way to derail the TTIP project entirely," Hufbauer said. "There would be a lot of questions raised. The administration has many battles ahead of it. It will add another layer of confusion on an already confused picture, and there will be lots of commercial concerns in the US [from those who] have had their eye on the UK markets."